It’s a story that by now most of America has already heard, and no matter what side of the fence you sit on, it is heartbreaking. In the early morning of November 26, 2013, 14-week pregnant Marlise Muñoz of Texas was found unconscious in her home and rushed to a hospital. Her husband Erick was told that she most likely suffered a pulmonary embolism, she was brain-dead, and that the fetus may have been deprived of oxygen. Marlise and Erick were both trained paramedics, and Erick believed that she would never choose to prolong her suffering, so he and her family chose to terminate her life support.
The hospital, however, had different plans, and informed the family they would not remove her ventilators and respirators, citing a Texas law that hospital spokesperson Jill Labbe says prevents them from “withhold[ing] or withdraw[ing] life-sustaining treatment for a pregnant patient”. The law was passed in 1989 and amended in 1999, and while the hospital maintains that it has followed the letter of the law, medical ethics experts say they are misinterpreting it. Legal experts and Muñoz’s family are speaking up to change the law. The essential question is whether the law applies to brain-dead patients or whether it was intended for pregnant women in comas or vegetative states.
While my effort to research the history of this particular law to trace anti-choice influence failed, a New York Times article did attribute Drexel University bioethicist Katherine A. Taylor with the information that this and similar laws nationwide were adopted in a period in which the public was concerned with “advance directives about end-of-life care like living wills and health care proxies…The provisions to protect fetuses, she said, helped ease the qualms of the Roman Catholic Church and others about such directives”. Another medical ethics expert, Jeffrey P. Spike of the University of Texas – Houston, said in the same article that other brain dead women had been kept on life support to keep the fetus alive, but every case he was aware of was supported by the family’s wishes.
While this is not a case that involves abortion, it is interesting to note that at 14 weeks gestation, Marlise Muñoz, had she been conscious, could have legally chosen to obtain one for any reason. Yet after brain death occurred, her husband who legally would hold power of attorney rights could not make an end of life decision for her and their unborn child, who most likely would either not live or have gravely impacted quality of life due to lack of oxygen.
And let me clear, because the fetus we now know has been very seriously harmed. At 14 weeks gestation, all the doctors knew was that the fetus had a heartbeat. They said they could do more testing between 22 and 24 weeks, and this week, at 22 weeks, they have now conceded that the fetus is not viable. It has fluid build-up on its brain, its lower extremities are so deformed that gender cannot be determined, and it may have a heart problem. The suffering of Marlise Muñoz and her family has been mercilessly prolonged while the state forced her to be an incubator for a fetus that could not survive anyway. This was hardly a guessing game; medically there was very little chance that the fetus would survive. NYU bioethicist Arthur Caplan wrote an editorial for the LA Times detailing why John Peter Smith Hospital was misinterpreting law and also argued that the law was unconstitutional. In a later exchange with Emily Bazelon at Slate, he says there are “almost no cases of trying to bring a 14-week-old to term in this circumstance”.
The story does seem to be coming to a just but sad end, as a Texas judge on Friday, January 24, ordered the hospital to remove Marlise from life support by 5:00 p.m. on Monday. The hospital may appeal but Labbe has said, “the courts are the appropriate venue to provide clarity, direction, and resolution in this matter”. The judge declined to speak to whether the law in question was constitutional.
While the Muñoz family is hopefully reaching the end of this terrible battle and can lay to rest Marlise and the once potential child they had looked forward to welcoming into the family, this case must serve to open the eyes of those concerned with reproductive justice issues. This law is the sort that sounds good on paper but is pushed by anti-choice zealots to further the precedent for giving the fetus rights that supersede those of women. Thirty-one states have laws on the books restricting end of life decisions for terminally ill pregnant women, and Texas is one of 12 with the most strict laws, requiring life support even in earliest pregnancy. Let me rephrase that: in more than 60% of states, women, their families, and even their doctors may have no say-so in a decision to be removed from life support if the woman is pregnant. In almost one-quarter of states, it does not matter if the pregnancy just began and the fetus has been harmed to the point of having no quality of life. It seems to me that when a woman has the legal right to terminate a pregnancy, a woman who is legally dead should not be kept mechanically alive to incubate a fetus despite her next of kin’s wish to remove life support.